finding no Fourth Amendment violation where officer, who was in hot pursuit, had probable cause to arrest for OWI and eludingSummary of this case from State v. Legg
Filed March 22, 1978.
1. Searches and Seizures: Police Officers and Sheriffs. A warrantless entry is valid if police officers enter under exigent circumstances of hot pursuit. 2. Criminal Law: Police Officers and Sheriffs. When a citizen has knowingly placed himself in a public place, and valid police action is commenced in that public place, the citizen cannot thwart police action by fleeing into a private place. 3. Trial: Appeal and Error. In order for an error of law occurring at trial to be considered by the Supreme Court on appeal, the alleged error must be properly presented to the trial court and properly preserved.
Appeal from the District Court for Hall County: DONALD H. WEAVER, Judge. Affirmed.
Thomas A. Wagoner, for appellant.
Paul L. Douglas, Attorney General, and Gary B. Schneider, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.
Defendant was charged with driving while under the influence of alcoholic liquor, third offense, and with resisting arrest. The jury acquitted him of resisting arrest, but found him guilty of driving while under the influence of alcoholic liquor. The District Court placed defendant on probation for a period of 3 years. Defendant appeals, alleging two assignments of error: (1) The failure to suppress the chemical analysis obtained in alleged violation of defendant's constitutional rights; and (2) finding the records of prior convictions were sufficient to substantiate a conviction for a third offense. We affirm.
At approximately 1:30 a.m., on the morning of September 23, 1976, Officer Ferry of the Grand Island police department was operating his police cruiser in a westerly direction on Fourth Street in the City of Grand Island. He observed a van turn onto Fourth Street from the south, heading west, approximately 1 block ahead of him. The van made an exceedingly wide left turn, narrowly missing parked vehicles. The officer started in pursuit. He observed the driver overcorrect after missing the parked vehicles, and veer into the eastbound oncoming lane of traffic. This forced the eastbound traffic to stop or pull out of the way to avoid being hit by the van. Officer Ferry accelerated to catch up to the van as it turned onto Cleburn Street. He rounded the corner of that street and saw the van make a "U" turn and park on the west side of the street. He pulled up directly in front of the van on the same side of the street.
Officer Ferry testified he came to a stop approximately 6 feet away from the van. He testified the police cruiser he was in bore abundant indicia of police identity, including visobar lights, a red bubble light, and two police insignias. Ferry then observed defendant rapidly alight from the van and start toward a house which he later learned was defendant's residence.
Ferry got out of the cruiser and called to the defendant to come over to him. He was then 6 or 7 feet away. Defendant then started running toward a house on the northwest corner of Cleburn and Fourth Streets. Ferry yelled, "I'm a police officer, stop." Defendant did not stop, so Ferry again asked him to stop and started running after him. Defendant ran to a side door of the residence, with the officer approximately 5 yards behind. When the officer reached the door of the residence the inside door was standing open but an aluminum glass and screen exterior door was closed. Officer Ferry opened the screen door but could not see anyone or determine whether defendant had gone upstairs or downstairs.
Being concerned for his own safety, Officer Ferry returned to his cruiser and radioed for assistance. Officer Kruse responded to the call almost immediately and both officers returned to the same door. There were lights inside and they could see a landing inside the door and steps going up and down. From the outside they could see the defendant with his shirt off, standing five or six steps down the stairs. Ferry opened the door "and called to the individual to come here." Defendant responded with profanity and asked why they were in his house. Ferry again asked him to come so they could talk to him. Defendant came upstairs and demanded their reason for being there. Ferry observed his eyes were bloodshot, red in color. He could also detect alcohol on his breath. When defendant refused to go outside, the officers took hold of his belt and shoulder and directed him outside the house where they asked him to perform some sobriety tests. Defendant refused. The officers then arrested him and took him to the police station. A breathalyzer test showed defendant's blood alcohol content was .19 percent.
Defendant filed a motion to suppress the results of the breathalyzer test on the ground that it was obtained as a consequence of an illegal arrest and unconstitutional search and seizure. The motion was overruled. After trial and conviction, this appeal followed.
Defendant contends his warrantless arrest was illegal and the result of a violation of his constitutional right to be secure in his home against unreasonable searches and seizures. The State contends the officers were authorized to enter defendant's home and make an arrest without a warrant and they substantially complied with statutory requirements for a warrantless arrest.
Defendant contends the violation of section 29-411, R.R.S. 1943, requires the exclusion of the results of the breath analysis. Section 29-411, R.R.S. 1943, provides for executing a warrant for the arrest of a person charged with an offense, or a search warrant, or when authorized to make an arrest for a felony without a warrant, the officer may break open any outer or upper door or window of a dwelling house or other building, if after notice of his office and purpose he is refused admittance. Even if section 29-411, R.R.S. 1943, were involved, the State contends its terms were substantially complied with. The State argues the officers gave the statutory notice if section 29-411, R.R.S. 1943, is applicable. The State further contends the facts of the arrest fall within the exigent circumstances exception to the necessity of complying with that statute.
At the time defendant rapidly left his vehicle, Officer Ferry started out of his car, calling to the defendant. At this point, the officer and the defendant were only 6 or 7 feet apart. The defendant started running toward his house, at which time Officer Ferry yelled he was a police officer, but defendant did not stop. Defendant could not help but be aware he was fleeing from a police officer. The evidence is conclusive defendant was seeking the sanctuary of his residence to avoid contact with the officer.
Section 29-404.02, R.R.S. 1943, is the statute applicable herein. It provides as follows: "A peace officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed:
"(1) A felony; or
"(2) A misdemeanor, and the officer has reasonable cause to believe that such person either (a) will not be apprehended unless immediately arrested; (b) may cause injury to himself or others or damage to property unless immediately arrested; (c) may destroy or conceal evidence of the commission of such misdemeanor; or (d) has committed a misdemeanor in the presence of the officer."
This section permits an officer to arrest a person without a warrant if he has reasonable cause to believe the person has committed a misdemeanor in the presence of the officer. Defendant's erratic driving and subsequent conduct was sufficient to give Officer Ferry reasonable cause to believe defendant was under the influence of either drugs or liquor. Further, defendant obviously was attempting to evade contact with the officer.
In this case the circumstance known as "hot pursuit," which is recognized as an exigent circumstance, renders the acts of Officer Ferry valid. A warrantless entry is valid if police officers enter under exigent circumstances of hot pursuit. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L. Ed. 2d 300 (1976). Even if it could be said probable cause for an arrest was lacking, the officer was entitled to make an investigatory stop. We are of the opinion United States v. Santana, supra, supports the decision of the trial court herein. The holding in that case is: "A suspect may not defeat a warrantless arrest set in motion in a public place upon probable cause by the expedient of escaping to a private place." In Santana the defendant was standing in the doorway of her home when the police drove up. The police pulled within 15 feet of her and got out of their van, shouting "police," and displaying their identification. As they approached, Santana retreated into the vestibule of her home. The officers followed and seized her holding some drugs and marked money.
The instant case is not too different from Edwards v. United States (D.C. Court of Appeals, 1976), 364 A.2d 1209, which followed Santana. There, police officers dressed in plain clothes and driving an unmarked car observed the defendant and a companion late at night walking up the street at a moderate pace, carrying a pillowcase. They had not seen defendant or his companion commit any crime, and had no knowledge of any crime having been committed. When they sought to make an investigatory stop, the defendant fled to his apartment in a nearby building. The District of Columbia Court of Appeals held when a citizen has knowingly placed himself in a public place, and valid police action is commenced in that public place, the citizen cannot thwart police action by fleeing into a private place.
As a collateral point, there could be a question as to whether Officer Ferry ever entered the home of defendant Penas. Ferry stepped inside the screen door onto a landing or entryway similar to a vestibule or chamber between the outer door and the actual living area. From this landing, steps led up to a door to the upper part of the house and down to the basement apartment where the defendant lived. The record does not indicate whether there was a door or some partition between the staircase area and the actual living areas. There is authority to the effect that a vestibule is considered a public area for the purpose of applying Fourth Amendment rules. United States v. Calhoun, 542 F.2d 1094 (9th Cir., 1976); United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).
Defendant Penas' second assignment of error is the alleged insufficiency of the record of the two prior convictions for operating a motor vehicle while under the influence of alcoholic liquor, to substantiate a conviction for a third offense. There is no merit to this assignment. The record of the two prior convictions are contained in exhibits 2 and 3. When exhibit 2, covering the conviction of January 24, 1975, was offered, defense counsel said: "Your Honor, we have no objection to Exhibit No. 2." Defendant's present counsel represented the defendant when he pled guilty to that offense.
As to exhibit 3, covering the conviction of October 22, 1972, the record is as follows: "MR. POTTER: At this time the State would offer proposed Exhibit 3, Your Honor.
"THE COURT: All right, Mr. Wagoner?
"MR. WAGONER: We have no objection, Your Honor."
Defendant not only did not object to the admission of these two previous convictions, but specifically stated that he had no objection to their admission.
In order for an error of law occurring at trial to be considered by the Supreme Court, the alleged error must be properly presented to the trial court and properly preserved. Lucht v. American Propane Gas Co., 183 Neb. 583, 162 N.W.2d 891 (1968).
Not only was there no objection made to the exhibits sustaining the previous convictions, but their alleged insufficiency was not assigned as error in defendant's motion for a new trial. The assignment not only is without merit, but on the record is frivolous.
The judgment is affirmed.